This post presents Gabrielle Bonne's, Law.com article from April 12, 2006, on what lawyers do (or shouldn't do) to get the most and bests from their expert witnesses.
I just finished presenting two seminars on this topic to ACCA, along with Steve Brower, Esq., a Superior Court Judge, a Federal Court Judge, and an Appellate Court litigator. I'll post my thoughts/notes from this important seminar in a few weeks.
Meanwhile, what do you think of Gabrielle's checklist? Have you ever been asked to break some of your own ethical rules as an expert? What did you do? What happens if the relationship starts off well, but then the attorney begins to practice some of these "Sins" -- What do/did you do then?
"So, I'd really like it if I could say this ..."
This post presents Gabrielle Bonne's, Law.com article from April 12, 2006, on what lawyers do (or shouldn't do) to get the most and bests from their expert witnesses.
I just finished presenting two seminars on this topic to ACCA, along with Steve Brower, Esq., a Superior Court Judge, a Federal Court Judge, and an Appellate Court litigator. I'll post my thoughts/notes from this important seminar in a few weeks.
Meanwhile, what do you think of Gabrielle's checklist? Have you ever been asked to break some of your own ethical rules as an expert? What did you do? What happens if the relationship starts off well, but then the attorney begins to practice some of these "Sins" -- What do/did you do then?
"So, I'd really like it if I could say this ..."
If you've just said that to your expert witness, you've just made his blood boil. And that's probably not going to be very good for your case. As engineer Steven Murray, Ph.D., of Exponent Failure Analysis Associates in Menlo Park, Calif., says, "Our job is not to support a lawyer's theory, it's to find out the technical truth."
Working on a case can be like a juggling act -- you've got your client, the other side, the other side's attorney(s), your witnesses, your expert witnesses, the other side's witnesses and experts. That's a lot of balls in the air. But you should never lose sight of your expert witnesses -- they can make or break your case. Commit too many of the Seven Deadly Sins and you can sabotage your chances of getting the best results.
1. WAIT UNTIL THE LAST MINUTE
Less experienced lawyers are often surprised by how early in a case they should hire experts and how much the guidance can help. For example, you may be an expert in the area of product liability theory, but you're not an engineer. If your case involves a car that overturned, you're probably going to need to talk to an engineer at some point. Doesn't it make more sense to do it sooner than later?
"This is one of our major pet peeves about working with attorneys," Murray says. "If we're brought in early enough to a case, we can establish the technical facts very well, and lawyers can use that to guide their strategy. The legal strategy that you can start off on, given all the facts, is usually just as beneficial and of course much more tenable than the legal strategies that you would embark on without all the technical facts."
Waiting too long to hire an expert, whether it's because you didn't realize the deadline is nearing or because you were hoping the case will settle before you have to pay the expert's retainer fee, is asking for trouble.
"Waiting until the discovery deadline may force the attorney into hiring an expert who just gives an opinion that the attorney wants to hear, and not necessarily bound by the constraints of Mother Nature," says engineer Dirk Duffner, of Principia Engineering Services in San Francisco. "At time of deposition or trial, this could undermine the expert's credibility under examination."
And an expert with a credibility problem is going to become a problem for your client.
2. HIRE THE FIRST PERSON WHO TELLS YOU WHAT YOU WANT TO HEAR
As with everything else, you should comparison shop. Interview several potential experts for their thoughts on your case and be sure they can tell you how their process works.
"At the time of the first phone call, an expert should be able to give an attorney a list of specific tasks that need to be accomplished and an approximate cost," Duffner says.
Psychiatrist and expert witness Dr. Carole Lieberman of Beverly Hills, Calif., advises attorneys not to pick an expert because he charges less than others. "Too often lawyers collect the CVs and fee schedules of experts, they pick the expert whose fees are the lowest," she says. "They don't stop to think about why the expert is less expensive."
Murray warns that it can be a mistake to go with an expert based on impressive credentials.
"In the courtroom, convincing evidence and a convincing demonstrative that show your theory fits the evidence will routinely trump great credentialing from the other side," he says. "So you can have someone that's a professor, that has participated in this technical field for years and years, and his opinion will not be valued as strongly as one good videotape that shows a perfect re-creation of the incident."
3. GO BARGAIN BASEMENT
Money is always an uncomfortable topic. You're a lawyer, so you may know how it feels to have clients breathing down your neck, watching the clock and demanding explanations for every second billed. Don't do it to your expert. Find someone whose skills you feel comfortable paying for, hire her on retainer and let her do her job.
Lieberman says, "You should not expect experts to 'discount' their fees. This is not a flea market. A good expert is not supposed to be a 'bargain.'"
You can help prevent billing surprises, according to forensic document examiner James R. Daniels of Houston, by being communicative about your billing processes, what your restrictions are and anything else that will help your expert meet your expectations.
4. PROVIDE INADEQUATE INFORMATION
Provide your expert with all of the materials and information available, and don't make excuses. Whether it's blueprints, handwriting samples or medical records, your witness probably needs something from you other than your list of questions. It's your job to get it to him.
If you don't have access to all the information, let your expert know, but understand that it may affect your results. Daniels says that attorneys sometimes "think having a great excuse for the absence of something is as good as the presence of something. If the car is out of gas, a great excuse for not having gas isn't going to start the car."
One of the worst things you can do is hide information from your expert just because it doesn't support your theory.
"It is extremely important not to hide any facts from your expert, even if you think they will damage your case," according to Lieberman. "It is far worse for your expert to be confronted with these facts on the witness stand."
5. ASK THEM TO BACK UP CRAZY THEORIES
Expert witnesses are called that because they're experts. They have some sort of education, training or experience that makes them more knowledgeable in their field than you are. Respect that. You may not like what she's saying, but if your expert witness tells you that your theory is rendered impossible by the immutable laws of physics, you should listen. She's trying to help you. Let her look at the information and do her job and tell you what happened. Then you can work out your legal approach.
"Anytime that you introduce a technical theory into court, as an attorney or as an expert, you've got to assume there will be some smartass from MIT that will pick you apart with a fine-toothed comb," Murray says. "The good news is that if your theory is right and it's the technical truth, there's no way it can be picked apart. But if it's not right, it should be relatively straightforward to crush your theory in a way that will be easily demonstrated to the jury."
6. IGNORE DIFFERENCES BETWEEN LEGAL STIPULATION AND SCIENTIFIC TRUTH
The practice of law is loaded with theory. Lawyers argue, expound and pontificate. Expert witnesses generally work with hard facts.
So even though you think a photocopy of a signature is good enough, your forensic document examiner may not. Did opposing counsel's expert say a copy was good enough? That's great, but your expert wants an original document. Try harder to find one.
"Lawyers can mentally get into this world of what is legally true or false, as by stipulation, or everyone agrees that such and such, but that doesn't make it factually true," says Daniels.
7. ACT UNETHICALLY AND ASK THEM TO DO SO, AS WELL
Your expert is as concerned about his or her reputation as you are about yours. And just like lawyers, expert witnesses can get reputations for ethical or unethical behavior. Lawyer jokes often focus on how unethical lawyers will do anything for a buck. Don't be that lawyer. Don't go for the "hired gun" expert who will skirt the edges of junk science to match your theory.
And don't ask a legitimate expert witness to compromise on integrity. For example, if you've hired a psychiatrist to be an expert witness but you want her to review medical records instead of examining the patient, and she says no, she's not being difficult -- she's being ethical.
Taking the high road can be more expensive up-front. Your expert witnesses may run up higher expenses or take longer to perform necessary research. But in the long run, when you win cases because your expert witness' statements are unassailable, it will be worth it.
Pet peeves, deadly sins and communication errors aside, many people who frequently serve as expert witnesses really do like lawyers. And they want to help you find the answers. All they ask is that you follow the Golden Rule.
"The bottom line," says Lieberman, "is for a lawyer to treat an expert with the respect and professionalism that the lawyer would expect for himself."
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